EMERGENCE OF INTERNET CITATIONS IN U.S. SUPREME COURT OPINIONS*, THE

This article tracks the use and growth of Internet citations in the decade 1996-2006. The first citation to an Internet reference appeared in a U.S. Supreme Court opinion in 1996. At the end of the 2005 term, all members of the Court had included Internet citations in opinions, and in recent terms, Internet citations appeared in over one-third of cases decided by the Court. Internet citations are found in a disproportionally large number of dissenting opinions. Internet citations are less permanent than other references, although the percentage of live links in Supreme Court opinions is much higher than that found in studies of internet citation permanence done in other disciplines. The use of Internet citations is compared to larger trends occurring in what is cited by members of the Court in their opinions. The rise in Internet citations has taken place at a time when citations to nonlegal sources have grown and references to law reviews have declined.

Acareful reading of judicial decisions shows that Internet references have begun to appear in the written opinions of the Supreme Court of the United States. Through the 2005 term, justices of the Supreme Court have included 200 Internet citations in 114 opinions. The Supreme Court is not alone in this use, as it has also grown rapidly in other federal courts as well as in academic research. A Lexis-Nexis search found that authors of opinions on the U.S. Circuit Courts of Appeals included Internet references in 268 opinions in 2005, up from only 55 opinions in 2000. Similarly, district court judges included Internet citations in 928 published decisions in 2005, up from 183 in 2000. Citations to World Wide Web resources have grown in research of all kinds in recent years, including major science journals (Dellavalle et al., 2003) and law reviews (Rumsey, 2002).

The growth of Internet citations may also be part of a larger trend of what is cited in United States Supreme Court opinions. In mid-century, Chester Newland (1959) found that the number of law-review articles cited in Supreme Court opinions was growing at a rapid pace. Recent research has found a significant decline in the number of law-review citations since 1970 (Sirico, 2000; McClintock, 1998). In comparing the three-year periods of 1971 to 1973 and 1996 to 1998, Sirico found that citations to law reviews in all Supreme Court opinions had declined from 963 to 271. Other researchers have found a rise in the number of nonlegal citations during the same period (Schauer and Wise, 2000). From 1970 to 1998 the number of nonlegal citations increased from 72 to 217. In a study of 1996 United States Supreme Court opinions, 18.7 percent (441 of 2,356) of citations in majority opinions were to documents other than judicial opinions (Manz, 2002). While not all Internet citations are to nonlegal sources, with many references to government documents, Internet citations refer to different kinds of secondary sources from what the justices have used before to support their arguments. Internet citations are at least a small part of the trend in which judicial opinions are taking at least a slight turn toward the empirical, citing factual information more.

Given the past experience with the citation of new materials in the Supreme Court, we can expect this usage to increase. For example, use of law reviews was sporadic at first and some justices avoided the practice, but by 1950 all of the justices were relying on law reviews in their opinions (Newland, 1959), with this usage continuing to increase until 1970. Just as with the citation of law reviews in the 1930s and 1940s, only a few citations to the Internet appeared in the mid-1990s, but usage increased greatly by 2002 when all justices began making references to the Internet.

This article is an initial examination of the emergence of Internet citations in the opinions of the U.S. Supreme Court. The first section will describe the trend. Questions to be addressed include: What is the number of citations and when have they appeared? Which justices are incorporating citations into their opinions? What types of cases and types of opinions cite Internet references? To what type of information do justices refer? What are their sources of information? The second section will address whether the information included in the Court's Internet citations is disappearing from the Web, the implications of this problem, and ways that it can be addressed. A few remaining issues will be discussed in a third section, with a focus on questions for future research.

CITATIONS TO THE INTERNET

The data set for this paper was developed from the signed, published opinions of the United States Supreme Court written from the beginning of the 1990 term through end of the 2005 term. The goal was to identify all citations to World Wide Web sources in these opinions. Only signed opinions were used because there has been only one Internet citation in an unsigned opinion, order, or dissent to a denial of certiorari, which occurred in a denial of an application to vacate an order issued by the United States Court of Appeals for the second Circuit written by Justice Ginsburg (Doe v. Gonzedes, 2006).